C-280/93

ORDER OF 29. 6. 1993 — CASE C-280/93 R

those of an economic and social nature, important part of a new common organi­ which are regarded as general interests at zation of the market must be rejected national level, and are therefore entitled where, on the one hand, the materializa­ to defend such interests before the courts. tion of the risk invoked to an entire sec­ They may therefore invoke damage tor of the national economy depends affecting a whole sector of their economy, upon the occurrence of a number of fac­ in particular when the contested Commu­ tors which do not appear to be predict­ nity measure may entail unfavourable able with a sufficient degree of probabil­ repercussions on the level of employment ity and, on the other hand, the said and the cost of living. common organization involves mecha­ nisms allowing the Community authori­ ties to react in the event of that risk mate­ rializing and where, moreover there is a serious risk of damage to other Member 2. An application for interim measures made States if the mechanisms envisaged by the by a Member State with a view to obtain­ common organization were not brought ing, as far as it alone is concerned, a sus­ into force in their entirety in the circum­ pension of the implementation of an stances envisaged.

ORDER OF THE COURT 29 June 1993 *

In Case C-280 / 93 R,

Federal Republic of Germany , represented by Ernst Röder , Ministerialrat at the Federal Ministry of Economic Affairs, Villemombler Srt. 76, D-5300 Bonn 1, and Jochim Sedemund , Rechtsanwalt , Cologne , Heumarkt 14, D-5000 Köln 1, acting as Agents ,

defendant,

supported by

Commission of the European Communities, represented by Peter Gilsdorf, Prin­ cipal Legal Adviser, Eugenio de March, Legal Adviser, and Ulrich Wölker, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Service, Wagner Centre, Kirchberg,

Hellenic Republic, represented by Vasileios Kontolaimos, Assessor at the State Legal Council, and Vasileia Pelekou, legal representative, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

Kingdom of Spain, represented by Alberto Navarro Gonzalez, Director General for Community Legal and Institutional Co-ordination, and Rosario Silva de Lapuerta, Abogado del Estado, of the Legal Service for Representation of the Spanish Government before the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6, Boulevard E. Servais,

French Republic, represented by Jean-Pierre Puissochet, Director for Legal Affairs at the Ministry of Foreign Affairs, Philippe Pouzoulet, Deputy Director with the Directorate for Legal Affairs, and by Catherine de Salins, Foreign Affairs Adviser at the said Ministry, acting as Agents, with an address for service in Luxembourg at the French Embassy, 9, Boulevard du Prince Henri,

APPLICATION for the adoption of interim measures permitting the Federal Republic of Germany to authorize, until the Court has given judgment in the main proceedings, the importation free of customs duty of bananas originating in third countries within the meaning of Council Regulation (EEC) No 404/93 of 13 Feb­ ruary 1993 on the common organization of the market in bananas (OJ 1993 L 47, p. 1) in the same annual quantities as in 1992,

THE COURT,

composed of: O . Due, President, C. N . Kakouris, G. C. Rodríguez Iglesias, M. Zuleeg and J. L. Murray (Presidents of Chambers), R. Joliét, F. A. Schock­ weiler, J. C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco and P. J. G. Kapteyn, Judges,

Advocate General: C. Gulmann, Registrar: J.-G. Giraud,

after hearing the Opinion of the Advocate General,

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4 By orders of 10 June 1993, the Commission of the European Communities, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Repub­ lic, the Portuguese Republic and the United Kingdom were authorized to inter­ vene in the proceedings concerning the adoption of interim measures in support of the form of order sought by the Council.

5 The Regulation lays down, in Title IV, the system of trade with third countries. In that respect it provides that traditional imports into the Community

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of bananas from ACP States, the quantities of which are set out in the annex, may continue to be effected free of customs duties.

6 Under Article 18(1) of the Regulation,

Article 19(1) provides that:

'The tariff quota shall be opened from 1 July 1993 for:

(a) 66.5% to the category of operators who marketed third-country and/or non- traditional ACP bananas;

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(b) 30% to the category of operators who marketed Community and/or traditional ACP bananas;

8 Under the terms of the Protocol, annexed to the aforesaid Implementing Conven­ tion, which has not been in force since 31 December 1962, the Federal Republic of Germany enjoyed an annual duty-free import quota of bananas. The basis for cal­ culating the quota was, under paragraph 5 of the Protocol, the quantity imported in 1956, namely 290 000 tonnes. That quantity was to be increased, for each suc­ ceeding year of application of the Protocol, in accordance with the rides for cal­ culation set out in paragraphs 3 and 4 thereof. If, during any given year, the quan­ tity thus calculated was insufficient to cover consumer needs in the Federal Republic, the Member States, under paragraph 6 of the Protocol, declared their readiness to agree to a corresponding increase in the quota if the overseas countries and territories were unable to supply in full the extra quantities requested. Under the third subparagraph of paragraph 4 of the Protocol, the Council, acting by a qualified majority on a proposal from the Commission, might decide to abolish or amend the quota.

9 In 1992 the Federal Republic of Germany imported, duty-free under the Protocol, 1 371 000 tonnes of bananas, of which 721 000 tonnes were calculated under the Protocol, whilst an extra quantity of 650 000 tonnes was requested under para­ graph 6 thereof.

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10 The Federal Republic of Germany, the applicant, the Council, the defendant, and the interveners presented oral argument at the hearing of the Court on 18 June 1993.

11 During the hearing the Federal Republic of Germanyvaried its application inas­ much as it agreed, in the alternative, that any quantities of bananas which it was to be authorized to import might be subject, as a provisional measure, to a customs duty of ECU 100 per tonne.

16 However, the position is different with regard to the variation in the application put forward in the further alternative at the end of the hearing. In fact it is sub­ stantially different in kind from the application lodged by the Federal Republic of Germany and fundamentally alters its subject-matter. It must therefore be regarded as a fresh application on which the other parties have not been able to define their position, and the Court can therefore only reject this application, put forward at the hearing, as inadmissible.

17 Under Article 185 of the Treaty, actions brought before the Court of Justice do not have suspensory effect. However, in pursuance of Articles 185 and 186 of the Treaty the Court may, if it considers that circumstances so require, order that the application of the contested act be suspended or prescribe any necessary interim measures.

18 Under Article 83(2) of the Rules of Procedure a decision ordering the suspension of the operation of a measure or the adoption of an interim measure is subject to the existence of circumstances giving rise to urgency and to pleas of fact and law establishing a prima facie case for the interim measures applied for.

19 As regards the pleas of fact and law establishing a prima facie case for the interim measure applied for, the Federal Republic of Germany states that Title IV and Article 21(2) of the Regulation are unlawful.

20 In that respect the Federal Republic of Germany puts forward a number of objec­ tions regarding essentially the lack of fresh consultation with the European Parlia­ ment as to the final version of the Regulation, infringement of the obligation to provide a statement of the reasons on which the Regulation was based, infringe­ ment of the Treaty provisions on the common agricultural policy, the rules of com­ petition and the common commercial policy, breach of the principle of the prohi­ bition of discrimination and of the principle of proportionality and of certain fundamental rights, and disregard of the provisions of the Fourth Lomé Conven­ tion and of the rules of GATT.

25 The Council contends first, as defendant, that the Federal Republic of Germany is not entitled to complain of damage to purely private interests, which are to be dis­ tinguished from the general interest represented by the government.

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26 The Council, with the support of the interveners, disputes, moreover, that the Fed­ eral Republic of Germany is threatened with imminent, certain and irreparable damage. The only general interest which has been mentioned, namely the risk of an increase in the price of bananas to the detriment of the German consumer, is not established, since the effect of the new measures on the income of the average consumer is negligible. The introduction of a tariff quota and the rules for its apportionment are indispensable for ensuring the outlet for Community bananas and for realizing the conditions for a genuine internal market in place of the indi­ vidual national markets subject to different systems.

27 As regards the nature of the damage which may be invoked by the Federal Repub­ lic of Germany, it must be pointed out that the Member States are responsible for interests, in particular those of an economic and social nature, which are regarded as general interests at national level and are therefore entitled to defend such inter­ ests before the courts. They may therefore invoke damage affecting a whole sector of their economy, in particular when the contested Community measure may entail unfavourable repercussions on the level of employment and the cost of liv­ ing.

28 Since the damage referred to by the Federal Republic of Germany falls within that category, its entitlement to act in that capacity cannot be challenged.

33 The position is the same as regards the claims made by the Federal Republic of Germany to the effect that there will be losses in the spheres of utilization of infra- structural equipment and of employment.

34 It is therefore appropriate to consider whether it is foreseeable at this stage with a sufficient degree of probability that there will be a shortage of supply on the Ger­ man market.

35 In that respect it must be stated that there is no agreement with regard to the ref­ erence figures for the consumption of bananas in 1992. On the one hand it appears that the data supplied by certain Member States were over-estimated and that as a result the figures used by Eurostat must be corrected downwards. On the other hand it is not established that all the bananas imported were actually consumed within the Community, since a more or less considerable part may have been re-exported to other States. Moreover the Council has contended that importers of

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third-country bananas artificially inflated the volume of their imports in order to have the advantage of favourable reference quantities upon the introduction of the common organization of the market, which was already in prospect in 1992.

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resulting from a special legal system applicable to a national market cannot, regard being had to the objectives of a common policy, take precedence over these requirements.

41 It is unnecessary to decide that question at this stage, but it must be stated that in present circumstances it is not sufficiently clear that the contested system of appor­ tionment will deprive the German importers of a substantial portion of their mar­ ket share, particularly as it is not evident why those importers should not succeed in supplying themselves with Community and ACP bananas, the marketing of which the common organization of the market is intended to promote. Should that subsequently prove impossible, the Federal Republic of Germany will be able at any time to set in motion the procedure under Article 16(3) or 30 of the Regu­ lation.

42 As regards the first of those provisions, the Commission points out that if the Council's estimates as regards in particular demand and the apportionment of the quota should appear, in the light of experience, to be incorrect, it would be possi­ ble to meet any supply shortage by means of Article 16(3).

43 The Council admits that the forecasts which it used as its basis may be shown to be incorrect, since it has not sufficient experience in this field. As the Federal Republic of Germany claims, it is true that the Council envisages the possibility of a modification of the quotas laid down in Article 18 only in the event of a con­ siderable change the current economic situation. It accepts, however, that the Community institutions are required to act if there should be a shortage to the extent alleged by the Federal Republic of Germany.

47 For that purpose Article 30 requires the Commission to take any transitional mea­ sures it judges necessary 'if specific measures are required after July 1993 to assist the transition from arrangements existing before the entry into force of this regu­ lation to those laid down by this regulation, and in particular to overcome diffi­ culties of a sensitive nature'.

48 In those circumstances it must be recognized that the application of the procedure of Article 16(3) or Article 30 provides an appropriate remedy should the situation apprehended by the Federal Republic of Germany arise.

49 Finally, as regards the possibility of striking a balance between the interests involved, the Council and, in particular, the French Republic, the Kingdom of

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Spain, the Portuguese Republic and the United Kingdom have stated that the exclusion of the Federal Republic of Germany from the system of trade with third countries and Community preference would result immediately in irreparable damage to the marketing of Community bananas and in intolerable consequences for the economy of the banana-producing regions, which might lead to social unrest.

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whole Community, the system of aids could not operate appropriately and would not therefore be capable of averting the damage apprehended by the Member States concerned.

54 Regard being had to the serious nature of that risk, to the fact that the damage alleged by the applicant has not been established with sufficient probability and to the obligation of the Community institutions to take the necessary measures to deal with any difficulties entailed by the introduction of the common organization of the market, it is not appropriate to adopt the interim measure applied for by the applicant, even in the form in which it was modified at the hearing.

55 The application must therefore be dismissed.

On those grounds,

Registrar President

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